June 22, 2008

No One Is Safe (II): FISA Is Only the Prelude to Nightmare

I indicated the other day that, as odious and destructive of liberty and privacy as the new FISA "compromise" bill is, there is one perspective from which the momentous to-do about this legislation is very badly misplaced. The selective focus on FISA misses the crucial larger picture in a way that ensures that the ruling class's hold on increasingly tyrannical power will never be consistently or seriously challenged -- which is, of course, precisely what the ruling class wants. In one sense, I certainly won't criticize those who protest the FISA legislation so vehemently, because I favor almost anything that throws a monkey wrench into the operations of our monumentally awful and oppressive federal government.

However, and it is an exceptionally large however, if the protests about FISA remain the sole (or even the major) focus of their complaints about the surveillance state, the protesters will make a very large gift to those who wish to oversee, regulate and control every aspect of our lives. I will return to that point in a moment. First, consider these observations from Jack Balkin on the FISA bill. In part, I consider Balkin far too generous to Obama, but he makes some important points:

Why did Obama stay silent for so long, and why did he finally offer such a muted response to the bill?

The answer is simple:

Barack Obama plans to be the next President of the United States. Once he becomes President, he will be in the same position as George W. Bush: he wants all the power he needs to protect the country. Moreover, he will be the beneficiary of a Democratic-controlled Congress, and he wants to get some important legislation passed in his first two years in office.

Given these facts, why in the world would Obama oppose the current FISA compromise bill? If it's done on Bush's watch, he doesn't have to worry about wasting political capital on it in the next year. Perhaps it gives a bit too much power to the executive. But he plans to be the executive, and he can institute internal checks within the Executive Branch that can keep it from violating civil liberties as he understands them. And not to put too fine a point on it, once he becomes president, he will likely see civil liberties issues from a different perspective anyway.

So, in short, from Obama's perspective, what's not to like?

Most Americans don't realize that the FISA compromise comes in two parts. The first part greatly alters FISA by expanding the executive's ability to wiretap and engage in much broader searches of communications than were permissible under the law before. It essentially gives congressional blessing to some but not all of what the executive was doing under President Bush. President Obama will like having Congress authorize these new powers. He'll like it just fine. People aren't paying as much attention to this part of the bill. But they should, because it will define the law of surveillance going forward. It is where your civil liberties will be defined for the next decade.

Part II, by contrast, is the part that everyone has gotten up in arms about. It creates effective immunity for telecom companies. It makes perfect sense for Obama to criticize this part of the bill. That's because he doesn't need it as much as he needs the first part, and his base really really dislikes it. . . .

So, let's sum up: Congress gives the President new powers that Obama can use. Great. (This is change we can believe in). Obama doesn't have to expend any political capital to get these new powers. Also great. Finally, Obama can score points with his base by criticizing the retroactive immunity provisions, which is less important to him going forward than the new powers. Just dandy.

I must immediately interject that to discuss these issues [pertaining to liberty and privacy] with regard to FISA is ludicrous in a much deeper sense. As Jonathan Turley explains here, FISA itself is a secret court whose very purpose is to circumvent the requirements of the Fourth Amendment. The FISA court is no protection against illegitimate government intrusion at all. But as Turley notes, that we are fighting over whether to grant the executive branch and FISA still more untrammeled authority to disregard constitutional rights is a measure of how far we have already marched toward tyranny. And look at this chart to see just how compliant the FISA court is.

As I argued in the earlier essay, if we were genuinely concerned about civil liberties and privacy, we would return to the Fourth Amendment and the procedures it requires, and the FISA regime would be abolished entirely. That's right: it would be abolished. No one wants to do that. Too radical, doncha know. That's scary talk, much scarier, it would appear, than the tyranny which daily strengthens its death grip on all our throats. Nonetheless, if you want to understand the nature and scope of the decades-long attack on individual liberty, you had better remember what FISA is.

Moreover, understand the nature of the old FISA regime, which appears to be just fine with almost everyone, Republicans, Democrats, progressives, everyone. Steny Hoyer has helpfully spelled out the near-omnipotent powers of FISA under the old scheme. Understand how comprehensive it is, and how comprehensively it destroys civil liberties. Quite inexplicably, though, Hoyer declined to summarize the government's powers under the old FISA scheme in easily understandable, everyday language. So I helped him out:

We can already spy on everyone. Everyone! Got that, you schmucks? And we don't even need a warrant a lot of the time! Every once in a while, we kinda think we should get a warrant. No reason for that actually. But it looks better, you know? Keeps the stupidly annoying civil liberties crowd happy. But those idiots at the FISA court will give us one nearly every time! [See here again.] And since FISA is a secret court, none of those peons (otherwise known as "citizens") will ever know a damned thing about what's actually going on anyway. It's good to be an Empire!

I repeat: that's the old scheme, which most people think is the bee's knees, a gentle zephyr cooling a moist brow, a benevolent moon keeping watch over a peaceful world below.

Beyond these points, there is another problem, one that is very difficult to convey, so terrible is it in its obliteration of liberty, privacy and all the values that our politicians claim to uphold. I discussed a related aspect of this problem in the earlier piece:

The fact that every aspect of our lives is regulated, directed and controlled has a further result, one of the most dangerous of all: If someone in government decides to go after you, he has an endless array of weapons from which to choose. Even if you emerge from the battle with your life largely intact, anyone in government who wishes to do so can turn your life into hell for years on end, even for decades. It may all begin with some pathetic bureaucrat in a cramped, stifling cubicle. Perhaps someone cut him off in traffic that morning; perhaps he had a fight at home the night before. Perhaps he's just a rotten human being. He happens to come across your name on some document, and he thinks: "I know: I'll go after him. That could be fun." And your life is destroyed.

With regard to FISA and issues of liberty and privacy in general, let me now ask you a few questions. How long do you think it would take you to identify, read, and understand every provision in every statute, regulation and other authorization that gives surveillance powers to the government? Furthermore: Would you know each and every place to look, or how to determine what those places were? Additionally: With a staff of 20, or 50, could it be done, even if you were provided with limitless time and limitless funds?

I submit to you, without qualification or reservation, that you could not do it. No one could. Consider that most legislators in Washington aren't even aware of much of what's in the bills they so eagerly vote on. Consider the prohibitive length and complexity of legislation that comes before Congress. That's true of what is going on now. If you tried to track down every piece of legislation, every regulation, every administrative agency ruling, and every other pronouncement still in effect that allows the government to surveil and otherwise keep track of you, me, the guy down the street, the woman next door and the man in the moon, based on alleged concern with and the need to protect us all from the ravages of drugs, "illicit" sex, any and all other suspected criminal activity and, natch, terrorism, how on God's green earth would you do it? You couldn't. I further submit to you that the only reason you appear to have some precious remnants of freedom left, and the only reason you remain at liberty, is that the government hasn't comprehensively focused on all the powers it already possesses and hasn't come anywhere close to utilizing them fully and consistently. This is the moment you should fall to your knees and thank whatever gods may be for the miraculous, close to perfect incompetence of the pathetically ineffectual blockheads in Washington.

I did only several minutes of very basic internet research. I offer you a few examples of what I mean. Again, all of this is entirely apart from FISA. Even if FISA were abolished tomorrow, all of these horrific intrusions into individual privacy would remain.

As a result of newly released Department of Defense (DoD) documents revealing the potential abuse of the government's surveillance powers, the American Civil Liberties Union today filed a Freedom of Information Act (FOIA) request to force the FBI to turn over documents concerning its use of National Security Letters (NSLs) that demand private data about individuals within the United States without court approval. In today's request, the ACLU seeks records pertaining to the FBI's issuing of NSLs at the behest of other agencies that are not authorized to access this sensitive information on their own. In addition, the ACLU is requesting all documents indicating how the FBI has interpreted and used its power to silence NSL recipients since the Patriot Act's gag provision was amended in 2006.

...

NSLs are secretly issued by the government to obtain access to personal customer records from Internet service providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or "gagged," from disclosing that they have received the letters. While the FBI has broad NSL powers and compliance with FBI-issued NSLs is mandatory, the Defense Department's NSL power is more limited in scope, and, in most cases, compliance with DoD demands is not mandatory. Additionally, while the FBI can issue NSLs in its own investigations, Congress has not given the agency the power to issue NSLs in non-FBI investigations.

See this page, too, which contains a wealth of information about National Security Letters.

The recently proposed mortgage legislation that will bail out powerful financial interests which just happen to have the right Washington connections has been strongly criticized for providing a taxpayer-funded salvage scheme of that kind -- but did you know that it may also do this?

Buried in the text of the revised legislation, approved by the Senate Banking Committee by a 19-2 vote [during the week of May 23], is a plan to create a new national fingerprint registry. It covers just about everyone involved in the mortgage business, including lenders, "loan originators," and some real estate agents.

...

What's a little odd is the lack of public discussion about this new fingerprint database. No mention of it appears in the official summary of the revised Senate bill. No fingerprint database requirement is in the House version of the legislation approved earlier this month. No copy of the revised Senate legislation is posted on the Library of Congress' Thomas Web site, which would be the usual procedure.

The feds' new fingerprint database would function like this: Any "loan originator" must furnish "fingerprints for submission to the Federal Bureau of Investigation" and a wealth of other unnamed government agencies. Loan originator is defined as someone who accepts a residential mortgage application, negotiates terms on a mortgage, advises on loan terms, prepares loan packages, or collects information on behalf of the consumer. Real estate agents are covered if they get "compensation" of any sort (including kickbacks) from loan originators.

...

In the proposed federal system, what remains unclear is what happens to the fingerprints once submitted. The legislation talks about a "background check"--which would imply a one-time use--but also creates a Nationwide Mortgage Licensing System and Registry that "provides increased accountability and tracking of loan originators." Neither Feinstein's nor Martinez's offices returned our phone calls and e-mail messages asking for clarification on Friday morning.

...

Creating a database of fingerprints of "loan originators" and a subset of real estate agents might make sense. It might not. But it surely would have been reasonable to have an informed debate on the topic before politicians rushed to enact federal legislation before the Senate's Memorial Day recess, and it would surely be wise to insist on security and privacy protections when the bill goes to the full Senate. Unfortunately, there's little reason to believe either will actually happen.

The Electronic Privacy Information Center keeps track of issues of this kind. Example: "In response to a request from Congressman Edward Markey, EPIC recommended strong medical privacy safeguards in a bill that would establish a national framework for electronic health records." And see EPIC's Medical Privacy page. Lots of links to investigate there, many of which are not the least reassuring.

Take a look at all the topics listed on EPIC's Privacy page. A huge number of links to investigate, such as the one on Counter-Terrorism Proposals. Still more links there. All of this goes on and on and on and on. In terms of surveillance and unending, relentlessly intrusive information-gathering on all Americans, I consider it impossible that the power does not already exist somewhere for the government to do basically whatever the hell it wants, whenever the hell it wants, to each and every one of us.

Note that I have not yet mentioned the government's vast capabilities for oversight, surveillance, control and punishment gained by means of its general, "everyday" massive taxing and regulatory powers, or by such liberty-destroying measures as a national ID card. If you conducted even a cursory search, I'm certain you would quickly come up with tens, hundreds and even thousands of further examples of government intrusion into areas of your life that you had erroneously believed were "private."

At the top of its Privacy page, EPIC highlights this statement:

"The right to be left alone -- the most comprehensive of rights, and the right most valued by a free people." -- Justice Louis Brandeis, Olmstead v. U.S. (1928)

I do not find the least bit of enjoyment in breaking the news to you, but I suppose someone must. In terms of liberty and freedom, the right to be left alone is the most precious value of all. Regardless of what happens with FISA, and even if FISA were abolished altogether, you lost that right decades ago.